HICKINGBOTHAM vl INDUSTRIAL FINANCE CORP. 429 HiCKING130TRAM INDUSTRIAL FINANCE • CORPORATION. . • • 4-442. Opinion : delivered March'16, 1936. ;• • TRIAL—JOMI S . SION , OF EVIDENCE admission of . further. testi-, Moni after clOSingis within the sound diseretion' of the irial • .'cOutt;. •there' Was' no abilSe of that AiScretion . in 'permitting ' the p'ayee in a sUit on .a mite to introduce . fürthee lestiMony 'after both parties had ,closed. ; 2, USURY.-4,,note executed , in: loan: transaction in : whick,the 'maker . received a 4 per ,cent, investment , certificate •which was delivered to the, payee Of the note aS collaieral . is not void . for iisury although AtorneY's fees . and costSz were te. be added . if 'suit 'became necessary to . enforce . Obligation, and -a' Separatel.collateral obligatiOn payable •in one year . and .from which' 10 per •cent: in-; :terest :in advance was , deducted , was given. C. 8 4 7355. • ' Appear'frOth 'De'sha Cirit Court; • T: G.? ParhaM, „fudge ; .. affirined. • '• J avek Meriitt; for appellant. Coy M. Nixon and Sam 111. Levine, for appellee. . ,JonNsoN, C; ;!7:: • • : J.; . Tins actio4 originated in ,a.,ju,Stice of tfie peaCe court'in l)esha County by Industrial Finance dorPoration aPpellee here fil 'inc; a note Si o med .by ap-p. ellant, , R. C. HiCkingbotham, upon which , a balance. of $40 was 'claimed as . due. The 'defense of. usu , ry. was.1:11- t65osea and ,Sustained hy . the justice. and. an appeal was prosecuted to the circuit court; of Desha County, and upp,n trial before the court on „ the issues joined:in the „justice court it found no usury in . ,the ,contract and Tendered judgment accordingly frorn which this appeal comes. The note, 'the fOm-idati o s n of the action, provides : "$100 . • " Pine Bluft; : Ark.;-June '10,1930. "For value receiYed I promise to pay tb the-Order of The Industrial Finan • ce- CorpOration:one hundred und 00/100 dollars,. with. interest .. fronf' maturity Amtil , 'paid, -payable .at tbe office of -the 'corporation, .in Pine..131nff, Arkansas, -in equal installments : of . $10. each on the 45th
430 HICKINGBOTHAM V. INDUSTRIAL FINANCE CORP. [192 day of each month, following the date of this note, until the whole amount of this note shall have been fully paid, being for the purchase of a four per cent. (4%) installment investment certificate of The Industrial Finance Corporation. Failure to pay any installment of this note, time being made the essence of this contract, shall entitle the payee herein to declare all instruments due, and he may proceed to collect same. " The makers, indorsers, guarantors, and sureties of this note hereby severally waive presentment for payment, demand, protest, and notice of protest, and nonpayment. This note may be extended without notice and without affecting the liabilities of any of the parties hereto. If the makers should fail in business or should become bankrupt, or should have filed against them, or any of them, proceedings in involuntary bankruptcy or for the appointment of a receiver, this note, each installment thereon, and ail other debts and obligations of the maker or makers, direct or contingent, shall immediately become due and payable. At the maturity of this note, or when otherwise due, as above provided any and all moneys, stocks, bonds, or other securities or property of any nature whatsoever on deposit with, or held by, or in the possession of said The Industrial Finance Corporation, as collateral, or otherwise, to the credit or for account of the makers, indorsers, or other parties hereto, or any of them, shall be and stand applied forthwith to the payment of this note, or any other indebtedness due said The Industrial Finance Corporation by said parties, or any of them. If this note be not paid when due and it should be placed in the hands of any at-torney-at-law for collection there shall be due attorneys' fees hereby fixed at 10 per cent. "Witness iny hand and seal. ."R. C. Hickingbotham (L. S.) " On the reverse side of said note appears the indorsement: "The undersigned hereby, jointly, severally, and in solido guarantee to The Industrial Finance Corporation, its successors, indorsers, or assigns, the punctual payment of the within note ; and having taken cognizance of
AR*..] HICKINGBOTHAil V. INDUSTRIAL FINANCE CORP. 431 all its terms and conditions hereby assent thereto, and consent that the time of payment of . said note 'may be extended without notice to or further assent of the : underSigned •or any of thein iirho Shall remain bound,.notwithStanding 'such .extension. "W.-11. 'Wagner, ,Engineer,• McGehee. • • "M. T. Hickingbotham, Engineer,.McGehee," The investment certificate•which is described in the. face of the note is as follows: .• "Investment Certificate of The Industrial , . Finance. Corporation "This is. to certify, that,R.•,C.. Hickingbotham is the holder of this four per cent. (4%) investment•certificate in the 'sum of orie hundred and 00/100 dollars for which he agrees to pay the sum of $10 on the 15th, day of each and every month hereafter until paid for in full.. Time being the essence of said payments..... . ."The holder of this certificate shall be entitled to receive four. per cent. (4%), interest per.annum on each payment made on due dates. .`,`In order for the holder of , this certificate .to receive interest above specified, pa.yments on said certificate must be made promptly on or before date due...... , , . • "When fully paid The Industrial Finance (orpora-tion will pay to •the holder hereof , the face of this .certificate with the said. four per . cent., (4%). interest in cash. .. . 'Witness our hands and seal, this 10th day of . June, 1930.. "The Industrial Finance Cerporation. "d. B. Smith, President. "Attest: P. M.,Kilroy, Secretary and Treasurer."... On the reverse side of this, certificate appears , the following indorsement: . • "For value received, I hereby transfer and assign unto The Industrial Finance 'Corporation the within:four per cent.' (4%). investment certificate,,as collateral security for my note of even date ..for .$100, subject, to ,the terms, conditions and provisions of : said note. "Witness my hand and .seal, this 10t . h , day , of June, 1930. "Signed: B. C. Hickingbotham."
432 HICKINGBOTHAM V. INDUSTRIAL FINANCE CORP.: [192 A 'collateral obligation by which the• investmerit certificate -heretofore set out . was pledged was executed as follo-Ws.: . :•. "$100 . -.Pine Bluff, Ark, June 10, 1930. "For value received one year after date I...jointly and severally promise to pay 'to' the Order of The Industrial Finance Corporation 'one' htmdred and 00/100 dollars, at its Office in the city ; of Pine . Bluff, Arkansas, with interest at the rate of -eight per cent.' (8%) per annum from maturitY until paid. "There has been 'deposited and . pledged as collateral security for • the payment. 'of this •note, or of ariy other liability ,or liabilities of the undersigned' to 'the owrier thereof, whether the same be noW existing or hereafter cOntracted, now due • or 'hereafter tO become due, the follOwing property, to-wit: • "And 'in addition thereto a four per cent. (4%) installment investment certificate of The Industrial narice Corporation, same 'being 'Marked' insfallMent investMent certificate N. o. 11,014 arid dulY assigned to the Industrial Finance Corporation,. and' full . poWer and: authority.is herebY granted : to sell, assign, and' deliver the whele' or ariy part thereof, Or' any . SubstitUte therefi5r, or any : additien thereto, 'at Public Or private sale, with the right to, apply the proceeds to the discharge . or 'Partial discharge and payment or partial PaYmentthereof. , "Any and all installments, together with accrued interest thereon, that may have been paid on the aforesaid investment"certificate or any note or notes given to secure same' or for which saine 'is gi.V. en as collateral security, all withont putting ih default, at option . of the.Owner or holder of this note, declaring the . total ainburit:(all stallments thereof) due, may be applied in 'total or partial payment of 'this note up:in the non-perfortharice : of this prerhise the rionPityment of a . hy of the liabilitieS above named, at any :time or 'times, Withont.advertising or notice, Which is hereby expressly waived: '• • •: "The owner or holder of this note may' briY aiyof the above and : aforesaid collateral at private sale with
ARK.] HICKINGBOTHAM V. INDUSTRIAL:FINANCE CORP: 433 or, without notice,. at the market price, and if there be no market price, at a fair valuation,, and the proceeds of any . sale ; shall be applied first to the payment ;of the expenSes of making such saie, together . with a reason: able, attorney's fee if any attorney is employed or cOnsulted;' : seCond, the 'paYMent Of the principal debt thereby 'secured and :the. interest therein; third, to the payment of' any other debt 'which the undersigned may now Or hereafter. .owe the oWner ôi hOlder Of this . note, either. as principal,. Se'enrity, indor§er or'otherwise, and . if any sfirphi§: then rethains Saine shall be paid to the 'UndeP g igned. : • "The parties to this note, whether Makers; indorSers, griarantors, 'or. sureties, hereby . severally -WaiVe present-ment fOr payment ;: demand, protest,- and notice of. prote§t; and' nonpayment.. • "This note_ may be extended Withofit notice arid without affecting the liabilities of any of tbe parties:hereto. If . the,thaker or makers , Shoulld . fail in business or beCome bankrUpt or should haVe filed against them -involuntary proceedings . in bankrfiptcy or proceeding§ for the ap-peintment of a . reeeiver, • this .note • and all other .debt's; obligations _of, the maker'or makers, direCt or contirigerit, shall immediately become :due and:payable.. "The owner •or holder' of - this -note • shall thaVe the, right to require at:any time. a greater iminber, or.more satisfactory sureties, indorsers or guarantors: Tho fire of , the. maker to comply with a request for such. further security, shall cause this note and .all. other. debts and . obligatiOns of the maker : or makers to immediately become due and: payable.... . !., . , . • • .. "At the maturity of this ,. .note, or when otherwise due, as: aboveprovided, any and.all moneys, stocks, bonds.; or other securities of property Of any . nature whatsoever on 'deposit with or held by,. ortin: the possession of. said. holder as . collateral pr . otherwise, : to the credit . or ; for the: aCcount of the makers, • indorsers, •or ,other parties hereto, or any of them, shall be ;and_ stand applied forthwith to :the payment, of this note;.or ; ; any other ;indebtedness due .said.holder•by said Parties. or any of. them. If this note : be not paid when due and it should be placed in the hands of..an attorney, for collection,. there shalt be
434 HICEINGBOTICAINI INEUSTRIAL 'FINANCE CORP. [192 due attbrneys' fee§ hereby fixed at ten per cent... (10/0:) of principal and 'interest 'due: •• • • "Time is expres§ly made the essence of this contract. Witness my hand and seal' n thiS day hbo nve stated. n "R. C. Hickingbotham (L. S.). "W. H. Wagner • . • "M. T . , Hickingbotham (L. S.)" Testimony was. adduced by .appellant which tended to ;show that . all the instruments heretofore set out constituted one obligation while that on behalf of appellee tended to show that the two- notes were separate and distinct obligations. ..; Appellant's•first . contention for - reversal .is that the trial court erred in permitting appellee to introduce- as a witness N. J. Gantt, president of appellee company, after • both • parties had . announced.. the closing of testimony.. . • •We have .rep.eatedly held the •admission of. further testimony after .closing is, within 'the sound discretion•of trial courts: Mossy . Adams, 32. Ark: 562; Eans V.. Rudy, 34 Ark.•383; Low.enstein. v. Finney,54•Ark. 124; 15 S.,W. 1.53; Bynum . v. Brady, 82.Ark. 603,100 S..W. 6.6i•and'We are unwilling •td impair our previous Opinions..in 'this regard or to say that the . trial court abused his discretion in admitting the .testimony of Mr. Gantt. •Sinee the • trial 'cotirt has' 'determined ambiguity -in the'. transaction§ betWeen appellant • and• 'appellee, and this at the eXpress , invitation of • appellant by -offering testimony in reference to 'the singleness of' the Obligations, and since it has found froin .Conflicting testimonY that' the'notes Were separate and distinct obligations, it follows that we innst dispose of the case with this find-hig of fact . in mind. • . • . • • • The finding 'Of fact' last referred to brings . this 'case squarely ikithin the . doctrine : annonnced by us in Simp-son v.. Smith Sal)inyS SOciety, 178 n Ark. 921, 12 S.' W. (2d) 890; . Wh.erein •we had Under' 'consideration • a series of transactiOns 'not .materially . different fro-M .. 01e transac tions . herein considered; . And . held 'first that the several instrument§ W6re . sepntat6 And- di§tinct obligations,' and, secondly, 'When thns' VieWed . .and constrned did not sePa-
ARK.] 435 rately disclose usury: Even so here. The obligation first set out was executed 'as the purchase price• of the investment certificate, 'and, had . appellant perforMed his part Of . the ,contract by . paying: all the inonthly,insta117. ments, he. ' would have owned . outright the :certificate, which .in turn would have automatically .paid off his collateral obligation. •. •• • • • . Contractual obligations analogous to this orie"have been approved by us. many times; .and the, doctrine is in line with the great weight of American authority. : Re ve v. Ladies' Bldg. Ass' , 56. Ar. 33,9 S. W.' 917; Taylor Van. Buren , Bldg. 4,ss4 , i, 340,. 19 S...W., 918; Black v..Thompkiim, 63 Ark.,02sp 55'; Farmers.' ., Saving , &Bldg.(6, .Loan , A, s'ii:Nr githon, 69 Ark. 352, 6,8 .S. HO,nke Bldg.. ct:LOan,Ass'n, 146 Ala. 371, , 37 So...237 . ; 27 R C. , L. 210; Ciiizelis' Bank v. Alurphy, 83 Ark. 3 . 1,j_02 S. W..07; Cockle y. Flac, 93 :CT. S.,344, 2 . 3 L. ed . ..9:49; 4nd Union, .Ce4tral Life Ins. ' Co. v.
Hilliard,. 63 Ohio St. 478 , . ,59, N. E. 2.30,, 53 L. R. A. 462..' . The collateral . Obligation . executed: byappellant demonstfably tot usurions It nintnres one year after date and . the obligee . ,dedueted .10 per -cent interest in advance. .This . iS authorized . by . §. 7355, Crawford & Moses' . Digest, and. we have many ;times .approved its consegnences. Bank 'of g eivilori v . . , C ook, .60 Ark. 285, 30 S. MT . 3.5, ; . Vahlberg . y. , Keqton, 51 A#..534, 11 'S. W . 878 Bedrd y .*Millwoo . c . /;' 51 Ark , . 548, 11, S. W. *881.. No error appearing, , the judgment is affirmed;
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.